The Business Council has carefully reviewed A.8318, which expands liability of health care organizations and urges that it not be enacted into law.
The bill imposes a new and higher standard for the decisions that arise from a health care contract. This bill takes the broad leap that a rational medical decision not to render care to a participating member could now be the subject of tort liability, complete with the attendant rights in an already burdensome and unpredictable civil justice system. The beneficiaries of this legislation would be the trial lawyers.
The bill is often referred to as a high priority for consumers. A recent survey conducted by the National Blue Cross and Blue Shield Association would seemingly contradict that contention. In the survey the right to sue ranked LAST among 21 major health issues that consumers said should be given higher priority. When asked to identify from the list, the one or two highest priorities, the right to sue was ranked last at 1 percent, compared to 24 percent who chose affordable coverage.
The proliferation of anti-managed care bills found across the country could lead one to the false conclusion that the prior fee-for-service system was of higher quality. It was not. It was a system fraught with over-utilization. There was little, if any, quality measurement. It lacked emphasis on primary and preventive care. The system today is better managed and better measured. This bill would add new litigation costs to the system as well as encourage over-utilization or "defensive medicine, which would also raise costs."
The Business Council believes there should be fundamental changes to the state's liability laws, but we believe those changes should be to discourage further litigation. For instance, we believe a cap on pain and suffering should be enacted. That is why we have worked with other organizations who suffer from the current abuses of the civil justice system - such as physicians - to create an umbrella organization called New Yorkers for Civil Justice Reform.
Health care consumers are not without rights to sue in New York State. In fact, there are already ample rights for consumers who feel aggrieved by their health insurer. We urge that the right to another lawsuit not be availed, because in the end it is the consumer who pays through higher costs and in too many cases less or no coverage.